Lucy Letby
In England and Wales, we grow up witnessing the so-called ‘cut and thrust’ of adversarial trials when a prosecution sets out a case and the defence tries to rebut the evidence presented. Few of us have any experience of inquisitorial criminal investigation processes, which is a system employed in France and Germany, among others. It is my contention that an inquisitorial process would have been far better at identifying valid evidence in the trial of Lucy Letby and that some of the medical evidence given, particularly by Dr. Dewi Evans, would have been exposed by an inquisitorial process as ill-informed and misleading. The procedure followed in Lucy Letby’s trial for the admission of scientific evidence was prohibited by case law.[1]
By adversarial legal processes, I refer to the legal nature of a trial or legal proceedings in which the parties in a dispute have the responsibility for finding and presenting evidence where the outcome is obtained through a ‘contest’ between the Prosecution and the Defence. The Prosecution holds a significant advantage over the Defence in the sense that the Prosecution has absolute control over what evidence will be revealed to the Defence. The Defence, rather than seeking the truth, is concerned almost totally with counter arguments to the Prosecution case in an attempt to induce doubt into the minds of the jury. The Defence is, therefore, engaged in a tactical confrontation with the Prosecution, rather like a game of chess. Sometimes, as with the Lucy Letby case, the defence makes a tactical decision to not call any experts to rebut the prosecution ‘experts’ and sometimes suggests to the Court that there is no case to answer. Despite the fact that these tactics rarely, if ever, work, that is what Lucy Letby’s defence lawyers tried and they failed. The defence lawyers were not trying to establish the truth, they were trying to be tactically astute; it backfired, and Lucy Letby now suffers the consequences because the Court of Appeal states that it was Lucy’s responsibility to present a defence in Court, even if she had no say in the tactics employed by her Defence.
Expert witnesses are increasingly crucial in securing convictions, especially where forensic evidence such as DNA is central to the case or where there are complex medical arguments to be made. The prosecution has realised for a very long time that juries can be influenced significantly by expert witnesses who appear ultra-confident and can exude an air of unimpeachable certainty in what they say as evidence. Unfortunately, this can and does lead to miscarriages of justice. Some expert witnesses cannot resist the temptation to exaggerate and embellish their evidence in sympathy with the case being made out by the prosecution and it is my contention that beyond any doubt this occurred in the Lucy Letby case.
There has been a case in the UK with several similarities to Lucy Letby’s. Professor Keith Simpson was a world-renowned pathologist. Simpson published his autobiography in 1978. It is fascinating because it spans forty years of forensic pathology when public acceptance of the ‘expert witness as infallible’ trend was growing. Simpson relates a highly significant event in Chapter 19 of his book, “The Innocence of Dr. Bodkin Adams”, which has similarities to the case of Lucy Letby. In this chapter Simpson recounts how Adams was accused of murder (mainly by salacious tabloid newspapers) by poisoning elderly women in order to obtain money from their wills. This occurred in 1956 in Eastbourne, Sussex, and was a huge scandal throughout Europe as well as the UK.
After pressure from newspapers to investigate Adams, he was pursued by a Scotland Yard detective, Superintendent Herbert Hannam, for whom the conviction of Adams seemed to have become an obsession. In pursuit of the conviction, perjury was suborned from numerous witnesses, not least four nurses. Fortunately for Adams, he was defended by the Medical Defence Union, and they uncovered an extravagant prosecution plot to convict Adams via false testimony. Despite finding no forensic evidence that Adams had committed murder (as confirmed by Prof. Simpson), Hannam charged him with two murders.
In the latter case, that of Mrs. Edith Alice Morrell, the prosecution case fell apart when the four nurses produced by the prosecution were found to be lying in their testimony by exaggerating the dosages of morphine administered to Mrs. Morrell. Unknown to the nurses, the Medical Defence Union had obtained the Nurses Report Book which showed that Dr Adams had prescribed only the recommended dosages of morphine for his patient and the nurses had only administered the recommended dosages, despite their testimony on oath that they had given Mrs Morrell what amounted to severe overdoses over a period of time.
The four nurses were Helen Stronach, Sister Mason-Ellis, Nurse Randall and Sister Bartlett. All four perjured themselves and could have sent Dr Adams to the gallows. Nothing then happened, despite the judge voicing his opinion that the nurses had lied under oath. What caused them to lie? Was it the pressure applied by newspapers, public opinion and Superintendent Hannam and the nurses’ willingness to help the prosecution? Did the same thing happen in the case of Lucy Letby?
At the root of the problem is the adversarial court system, which often values ‘theatre’ above rationality and logical investigation; juries are convened to be regaled with subjective argument and are often persuaded not by fact, but by impassioned performance by designated expert witnesses and lawyers. Time and time again we find examples of dogmatic, exaggerated testimony and outright lies used shamelessly by the prosecution to secure a conviction. The practice goes back a very long way and is so embedded in the trial system that it is virtually impossible to eradicate in the adversarial legal system in operation in the UK. Generation after generation of ‘experts’ not only maintain the traditions of false testimony but elevate their perjury into an art form. For example, we witness the emergence of ‘celebrity’ pathologists who now regard themselves as preening detectives, promoting themselves via websites, selling their books and creating light-entertainment TV shows; touring the UK to give theatre performances and presenting false evidence as if it was fact[2]
In the Lucy Letby case, we saw medical ‘experts’ give testimony about illness in babies that resulted in death, without having seen the babies or examined them, without having conducted a post-mortem and then pronouncing a cause of death that was, in fact, just their subjective opinion. Often this was based on the premise of “I have never come across this before…”, which is not evidence, it is simply a statement of ignorance. All of the babies’ deaths are recorded, officially, as being due to natural causes. All of the medical evidence given in the Letby trial was subjective opinion rather than true scientific fact. Why should a Jury have taken any notice of a witness who said, “I had never seen this before” – that is not a scientific argument, but it was used to bolster the prosecution case.
The great problem with this adversarial approach is that the prosecution narrative is often a work of fiction, exaggerated and over-hyped by a histrionic prosecution lead Counsel. Opinion is stated as fact and, in the case of Lucy Letby, the Judge is duped by the prosecution into accepting as fact what was actually nothing more than supposition. We know this because of the Court of Appeal judgement which tells us:
“The judge ruled that there was a sufficient body of accepted expert medical opinion that administration of air into the venous system could cause air embolism which might be fatal[3]. He acknowledged the rarity of the condition and that it followed that there was limited medical literature and research on the condition and that clinical experience was bound to be limited. He ruled however that it did not follow that the body of evidence taken as a whole was too vague or inherently weak to be admissible evidence. Such criticisms of the experts were, he found, matters for the jury to consider and evaluate along with the other evidence in the trial" (emphases added).
How was the Judge to rule that there was a sufficient body of medical opinion? He heard from prosecution witnesses, but none appeared for the defence. We now have medical experts calling the evidence given by Dr. Dewi Evans ‘‘nonsensical’’ or “rubbish”, “ridiculous”, “implausible” and “fantastical”, by eight separate expert clinicians who spoke to The Guardian newspaper, seven of them specialising in neonatology. Yet, the Judge deemed it to be valid and admissible.[4] Is it possible that the Judge was simply gullible, or bamboozled by the medical evidence?
When applicants approach the Criminal Cases Review Commission (CCRC) they are often asking for it to undertake an inquisitorial form of enquiry into their case, seeking the truth which, they believe, will set them free of guilt. However, the CCRC shows no interest in doing so, seeming to be in deference to, not challenging of, the adversarial arguments made at trial. In this sense, the stance of the CCRC can be interpreted as, “Never mind the truth, you were convicted through an adversarial process and the only arguments that we will accept will be based on another consideration of the adversarial evidence”. The truth has little impact on the CCRC, their only concern is for the ‘safety’ or otherwise of a conviction. Indeed, the guiding presumption of the CCRC is that all applicants are guilty.[5]
Lucy Letby needs the true medical/scientific facts of her case outlined to the CCRC as ‘new’ evidence, along with the argument that if the jury had heard the evidence their verdict would have been ‘not guilty’ because the medical evidence suggests strongly that the babies did not die from air embolism or insulin poisoning (see Science on Trial). The CCRC and the Court of Appeal needs to behave like an inquisitorial body, not concerned with the legal processes already followed, but showing concern instead for determining accurate medial/scientific evidence and accepting evidence from persons more qualified and experienced that Dr Dewi Evans. Otherwise another great miscarriage of justice may well occur and let us not forget how long Lucy Letby has already spent in prison; she needs justice urgently.
By Bill Robertson
Bill Robertson has researched alleged miscarriages of justice for around 20 years and advised on several cases, including the most recent application to the CCRC by Jeremy Bamber.
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References
[1] “In determining the issue of admissibility, the court must be satisfied that there is a sufficiently reliable scientific basis for the evidence to be admitted. If there is then the court leaves the opposing views to be tested before the jury.” R v Dlugosz [2013] EWCA Crim 2, [2013] 1 Cr App R 32 at [11]”
[2] To give but two examples, Dr Peter Vanezis and Dr Richard Shepherd. Both promote themselves via the mass media, personal websites, and revel in publicity from tabloid newspapers.
[3] It appears that there is only one research paper, dating from 1989, which discusses gas embolisms, which occur through the use of high ventilation pressures in preterm neonates. The cause of death due to gas embolism from high pressure ventilation differs substantially from the cause of death due to air embolism. It is never properly explained how the article Dr Evans referenced could ever have been used as a basis for describing air embolism using ambient air with 21% oxygen introduced through various tubes.
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